THE PRESIDENT'S OWN COURT': IS UKRAINE'S SANCTIONS LAW PROTECTION AGAINST THREATS OR A THREAT ITSELF?

Do you have doubts about the fairness of sanctions against Medvedchuk or Yanukovych? What about sanctions against Russian propagandists? And what about Bohdan, Bereza, Arestovych, Mendel, Poroshenko, and others?

Is our attitude to sanctions determined by personal sympathy or antipathy towards those targeted by them? Or by our sympathy or antipathy towards those imposing them? And do we trust the process through which sanctions are applied? Because trust in the process is what should shape trust in the outcome.

Imposing sanctions against obvious criminals who have caused unprecedented harm to the country cannot legitimise the sanctions instrument itself. A result that appears fair at first glance, but was reached without proper legal procedure, is either a coincidence or a convergence of interests and a deliberate manipulation of us into consenting to its use for as long as it does not affect us personally.

In this article we do not challenge the importance of sanctions as an instrument, but rather examine the procedure and mechanism by which they are imposed. On the basis of that procedure, are sanctions an instrument for protecting national security and national interests from threats—or are they themselves a threat?

What are sanctions and why does this legal instrument matter?

We understand sanctions as restrictions on rights and freedoms with the aim of deterrence and/or punishment. States impose sanctions on states, organisations, groups, legal entities and individuals in order to limit their ability to threaten the national security or national interests of a given country, and/or to punish them for doing so.

In August 2014, the Verkhovna Rada adopted the Law 'On Sanctions' to create a legal instrument for rapidly responding to threats to national security and national interests. This instrument is important in peacetime, and during Russia's aggression against Ukraine it is particularly so, since waiting for ordinary criminal proceedings can sometimes allow suspects and their assets to leave the country, organisations to continue operating, or threats to grow in scale. However, the speed and flexibility that make sanctions useful also create a fundamental democratic problem. The question is not whether sanctions are necessary, but what prevents their use from becoming arbitrary.

Who imposes sanctions in Ukraine, and how?

The sanctioning process was designed to enable rapid responses to threats. Today, asset freezes and restrictions on trade or movement can be imposed with little more than a meeting and a signature. However, this means that neither the courts—however corrupt—nor the Verkhovna Rada—however lacking in genuine agency—check whether sanctions are necessary or appropriate before they take effect.

Sanctions must first be formally proposed by the Verkhovna Rada, the President, the Cabinet of Ministers, the National Bank, or the Security Service of Ukraine (SBU). In the recent high-profile case of sanctions imposed on Zelenskyy's former press secretary Iuliia Mendel, the process was initiated by a proposal from the SBU. It is worth noting here that both the SBU and the other bodies listed are de facto controlled by President Zelenskyy, which only deepens the problem.

The sanctions are then considered by the National Security and Defence Council of Ukraine (NSDC). Two-thirds of votes in the Council are required to approve them. The president chairs the NSDC and determines its composition, meaning that the body which authorises sanctions is dependent on the office that implements them. If the NSDC approves the proposed sanctions, the president enacts them through a presidential decree.

It should be noted that the NSDC has twenty members including Zelenskyy. Of these, eighteen—already more than the two-thirds required—are either appointed by Zelenskyy personally, appointed by those whom Zelenskyy personally appointed, or are appointed by parliament following a formal or informal nomination from Zelenskyy. The remaining two are Zelenskyy himself and the President of the National Academy of Sciences of Ukraine.

The NSDC therefore includes representatives of different government bodies, but lacks genuine independence because of their effective subordination to the president. In practice, the entire process from the proposal to impose sanctions through to their approval and signing is controlled by one person. This means that in Ukraine today, the full power to impose sanctions for the protection of national security and national interests rests with an individual who in 2022 discounted the threat of a full-scale Russian invasion and, consequently, discounted the need to prepare for it. Is such a sanctions mechanism a means of protection from threats to national security and national interests, or is it itself a threat?

Why can an instrument for protecting national security and national interests itself become a threat?

There is no authority independent of the president capable of ensuring that sanctions are genuinely necessary to protect Ukraine's national security and national interests. The person against whom sanctions are directed learns of them only after they take effect through the presidential decree, and even the decree itself contains no publicly stated reasoning. Only an accompanying statement from the Office of the President to the press explains the list.

Whatever the truth in any individual case, the sanctions law crosses the boundary between protecting the country and protecting those who govern it. This is because there is (1) no defined standard for what counts as a threat, (2) no clarity over who the law even applies to, and (3) almost no way to challenge a decision once it has been made.

No evidentiary threshold exists comparable to that applied in ordinary judicial proceedings, while the broad grounds of 'real and/or potential threats' to national interests or national security leave significant room for interpretation. Nothing prevents a president from characterising criticism of the government or a politically inconvenient investigation as a threat to the national interest, since national interests themselves are never clearly defined and there is no requirement to demonstrate this to a judicial standard.

Where genuine evidence of a crime exists, such as cooperation with Russian intelligence, ordinary courts should be capable of establishing this and punishing those responsible. Sanctions are designed to operate before such a finding has been made, reducing the risk of a threat developing before the courts complete their work. Yet once sanctions have been applied, there is no subsequent need to meet ordinary legal standards. In effect, the evidentiary and legal standards applied by the courts are replaced by the president's own assessment. Sanctions become most useful, and most concerning, precisely in cases where the courts' evidentiary bar cannot be met.

The law is also unclear about who it applies to, since it does not clearly establish whether Ukrainian citizens are subject to individual sanctions. Despite this, the law has been applied to several Ukrainians. Whether sanctions against Ukrainian citizens require different grounds or a different scope is left undefined, meaning Ukrainians cannot know with confidence what separates lawful political activity from conduct that might attract state coercion.

Even when a decision is wrong, challenging it is almost impossible. The precise reason for the imposition of sanctions can be established through legal proceedings, but the NSDC decision itself cannot be challenged in court. Only the presidential decree enacting that decision can be challenged, and even this is severely restricted since much of the information and evidence is routinely withheld from the defendant's lawyers on national security grounds.

Moreover, as Supreme Court Judge Oleh Tkachuk explained, the Supreme Court takes the position that the president independently assesses the existence and sufficiency of grounds for imposing sanctions. By deferring to the president on sanctions, the courts enable punishment without a judicially established basis. Of the 205 sanctions cases the Supreme Court had resolved at the time of Tkachuk's comment in July 2024, just one was decided in favour of the claimant. Legal action has very little chance of success and is not an effective check on presidential power.

The fundamental rights of a law-abiding citizen, such as the right to private property and freedom, are therefore not guaranteed by law, but merely permitted by those in authority for as long as they decide not to deprive the individual of them. In most people's lives this is barely noticeable, yet it is an important distinction: it is the difference between right and wrong being defined by legislation or by the decisions of a small group of people or a single individual. In the first case, you can be certain of your rights if you follow the publicly available laws. Even if those laws are not perceived by society as fair, they establish certain rules. In the second case, your rights may depend on not upsetting the people who decide what is right and wrong, and so even your lawful actions are shaped by their preferences. Is the genuine protection of Ukrainians' inalienable rights and freedoms not itself a matter of national security and national interests?

This is why the question of whether the current leadership actually abuses this power is ultimately secondary. Sanctions may be an effective instrument for deterring or punishing those who support Russia's aggression, but the procedure through which they are imposed means they are equally effective against anyone else a president wishes to coerce or punish.

The country's leadership denies that there is any systematic political suppression in the use of sanctions. This may or may not be true, and in a certain sense it does not matter. Even if Zelenskyy uses sanctions with all the good intentions assumed by the Supreme Court, the fact that nothing prevents these powers from being used in bad faith can still lead Ukrainians to self-censor their criticism of the president in order to protect their basic rights. Moreover, nothing prevents a future president from using sanctions against political opponents, even if one accepts that the current president does not.

In such conditions, it is not necessary to sanction individuals in order to deter them: fear of losing property or freedom can discourage political debate and participation in opposition organisations or events. Democracy suffocates when one person holds arbitrary power to punish others, regardless of how that power is actually used.

Not the abolition of sanctions, but preventing their transformation from a protective instrument into a threat

The US, EU, and other democratic governments use sanctions for similar reasons to Ukraine, but with stronger safeguards. The EU requires consensus among member states to impose sanctions and permits them to be challenged before the EU General Court, while in the US the administration's sanctions decisions are subject to judicial review and other procedural safeguards. Sanctions are not inherently undemocratic, but the power to impose them must be constrained in order to protect democracy.

How, then, to reconcile the simultaneous need to resist Russian aggression and to protect people's freedom from arbitrary power? Only by restricting arbitrary power to the greatest extent possible without rendering sanctions impotent. There should be clear criteria for their imposition, not simply a subjective reading of the 'national interest.' Similarly, criteria for the type and duration of sanctions should be established so that the punishments themselves are not arbitrary.

Independent officials and bodies should play a greater role in the NSDC's decision-making, at least sufficient to overcome a presidential-appointed two-thirds majority. There should also be meaningful judicial review that requires courts to independently assess whether the defined criteria were met, even if this must be conducted behind closed doors on national security grounds. These safeguards need not prevent sanctions from being imposed rapidly, yet each step would transform sanctions from an arbitrary power into one that is accountable and democratic.

Billi-Villi is an analytical media outlet that explains the mechanics of decisions, the motivations of politicians, hidden interests, and consequences affecting the situation in the world and in Ukraine today.